Amoco Foam Products Co. v. Johnson

• Decision Date: 08 January 1999
• Docket Number: Record No. 980139.
• Court: Virginia Supreme Court
• Parties: AMOCO FOAM PRODUCTS COMPANY v. Essie L. JOHNSON.

510 S.E.2d 443

257 Va. 29

AMOCO FOAM PRODUCTS COMPANY v. Essie L. JOHNSON.

Record No. 980139.

Supreme Court of Virginia.

January 8, 1999.

Benjamin J. Trichilo (Trichilo, Bancroft, McGavin, Horvath & Judkins, on briefs), Fairfax, for appellant.

Nikolas E. Parthemos (Parthemos & Bryant, on brief), Winchester, for appellee.

Present: All the Justices.

COMPTON, Justice.

In this appeal of an award under the Workers' Compensation Act, we review the Court of Appeals' application of the doctrine of compensable consequences.

In July 1992, appellee Essie L. Johnson, the claimant, sustained a compensable left ankle injury that arose out of and in the course of her employment with appellant Amoco Foam Products Company, the employer. Following lengthy treatment and June 1994 surgery on the ankle, the claimant fell at home in August 1994 while recovering from the surgery when the ankle gave way, causing injury to her right knee.

In a September 1995 opinion, the Workers' Compensation Commission affirmed a deputy commissioner's ruling that the 1994 right knee injury was a compensable consequence of the July 1992 industrial accident, and awarded compensation accordingly. The self-insured employer did not appeal this award.

The present case arises from the claimant's application seeking payment of compensation as a result of a further right knee injury that occurred in November 1995 when her right knee "gave out" at home causing her to fall. The claimant sought permanent disability benefits as a result of a 20% loss of use to the right leg caused by the August 1994 compensable consequence injury. The claimant also sought compensation for a period of total work incapacity of about 30 days during November-December 1995 as a result of the further right knee injury occurring in November 1995.

In a January 1997 opinion, the Commission affirmed a deputy commissioner's decision awarding benefits. The deputy found that the claimant's November 1995 fall was a compensable consequence of her August 1994 accident, which, in the Commission's words, "was previously adjudged to be a compensable consequence of the claimant's original industrial injury."

Following the employer's appeal, a panel of the Court of Appeals unanimously affirmed the Commission. Amoco Foam Prod. Co. v. Johnson, 26 Va.App. 267, 494 S.E.2d 169 (1997). In framing the issue, the Court of Appeals said: "The determination that the 1994 knee injury was a compensable consequence of claimant's ankle injury is res judicata. It is undisputed that claimant's original 1992 injury was not the immediate cause of her 1995 injury. Consequently, the issue before us is whether as a matter of law the commission may award benefits for an injury caused by a compensable consequence, or, in other words, whether a claimant may recover for a compensable consequence of a compensable consequence." Id. at 273, 494 S.E.2d at 172.

Answering the question in the affirmative, the Court of Appeals stated: "In the instant case, the evidence established that claimant's 1995 knee injury was causally related to her 1994 knee injury which was causally related to her initial ankle injury. This chain of causation is direct and natural, and there is no evidence of any intervening cause attributable to claimant's conduct. Furthermore, claimant's 1994 compensable consequence knee injury becomes a primary injury, and the injury it caused in 1995 is clearly a compensable consequence of it. We hold that claimant's November 1995 knee injury is a compensable consequence of her 1994 knee injury and of her 1992 ankle injury." Id. at 275-76, 494 S.E.2d at 173-74. The employer appeals.

The question is whether the Court of Appeals was correct in answering the foregoing question affirmatively. We hold that the court erred.

Any discussion of the doctrine of compensable consequences must recognize the basic concept that a disputed accidental injury must arise out of and be in the course of employment in order to be compensable. See Code § 65.2-101 (defining "Injury").

This Court first addressed the compensable consequences idea in Immer and Co. v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967). There, the question presented was "whether an employee who suffers a compensable injury may be awarded compensation for additional injuries suffered in an automobile accident occurring while the employee is en route from his place of employment to a doctor's office for further treatment of the original injury." Id. at 721, 152 S.E.2d at 255. The Court stated, regarding the second injury, "[t]he struggle seems to be with determining whether such an additional injury `arises out of the employment.' The eternal search in making the ......